LEV3701 PORTFOLIO MEMO - OCTOBER 2021 (DETAILED MEMO) SUPER SEMESTER UNISA

Section 1 At the age of 14 the complainant was raped by two young men. At the time of the rape she did not report the matter to her parents or lay charges, but briefly told a friend about the incident. Nineteen years later she met one of her assailants, which revived memories of her ordeal and prompted her to lay charges against the men who had raped her. Answer the following questions relating to the trial: 1.1 During argument, the defence submits that because the complainant is a single witness, and since the case is of a sexual nature, the court cannot give any value to her evidence. Do you agree? Fully discuss with reference to decided cases and legislation. (12) 1.2 Discuss the competence and compellability of the co-accused as a defence witness and as a prosecution witness. (8) 1.3 Explain, in view of the Constitutional right to silence, whether the two accused can be convicted if they fail to testify. (4) 1.4 Can corroboration play any part in the state’s case? Explain with reference to the definition of and requirements for corroboration. (6) [30] SECTION 2 A student is charged with the alleged rape of a fellow student. During the trial, the victim testifies that the rape took place one night after a function on a deserted part of the campus. She explains that she was involved in a serious battle with her assailant and identifies the accused as her attacker. During cross-examination it is put to her that she is lying, because she couldn’t have observed the assailant’s identity properly. The accused also cross-examines her about her sexual relations with various other men and indicates that he intends calling witnesses in this regard. The prosecutor responds by calling the complainant’s friend who testifies that the complainant had given her a similar version of the events that very same night. She also testifies to what the complainant had said about the identity of her assailant. 2.1 Fully discuss, with reference to the Criminal Procedure Act of 1977 and guidelines from case law, whether you would also have allowed the questions that were put to the complainant during cross-examination. Also explain whether you will allow him to call witnesses in this regard. (10) 2.2 Because of the nature of the crime, the complainant’s friend could testify as an exception. However, before this exception can apply, certain requirements must be satisfied. Fully discuss the exception and requirements with reference to decided cases. (10) 2.3 If the prosecutor never called the complainant to testify, this changes the nature of the evidence that the complainant’s friend can present. Fully explain whether you would still allow the friend to come and testify under such circumstances. Give a definition of this type of evidence in your answer and refer to section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 and decided cases. (10) [30] SECTION 3 The accused is charged with murder. The state’s principal witness stands to testify that she had seen the accused shoot the deceased and that she had also seen something fall from the accused’s pocket during the shooting. She will also testify that she returned to the scene after the accused had left and had retrieved the object and discovered that it was a cellphone. She will testify that she gave the phone to a member of the gang to which her partner belonged. The phone was eventually handed over to the police. Data retrieved from the phone contain images that could be used in the prosecution of the accused in that they could prove that the phone belonged to the accused. At the trial the defence objects to the admissibility of this evidence on several grounds and claims that the accused had lost his phone the day before the shooting and that the phone before court was not his. Fully discuss the following issues with reference to cases and legislation where applicable: 3.1 Would you agree with the prosecution that the evidence is real evidence and that there are no special requirements for admissibility? (5) 3.2 If it is accepted that the images are documentary evidence, fully discuss the relevance of sections 14 and 15 of the Electronic Communications and Transactions Act 25 of 2002 as far as the admissibility of the relevant evidence is concerned. (10) 3.3 Fully discuss the relevance of the common law requirements for the admissibility of documentary evidence with reference to the above set of facts. (10) 3.4 How must the court approach the identification evidence in the case? (5) [30] SECTION 4 Fully explain the difference between an admission, a confession and a pointing-out. Refer to relevant cases and requirements for admissibility in your answer. (10) [10]